Citation Nr: 1317827 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 03-23 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left leg disorder. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for coronary artery disease with coronary artery bypass graft residuals. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1960 to April 1962. This matter came before the Board of Veterans' Appeals (Board) on appeal from September 2002 and January 2004 rating decisions of the Montgomery, Alabama, Regional Office (RO). In November 2007, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. This matter was previously before the Board in March 2008, August 2010, and April 2012, at which time it was remanded for further evidentiary development. The case has returned and is again ready for appellate action. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The Veteran failed to report for a scheduled VA examination in April 2010 for his claimed left leg disability without good cause. 2. The Veteran does not have a current left leg disability that is related to an injury or disease in service. 3. The competent and probative evidence of record does not demonstrate that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, that the event was not reasonably foreseeable or that the treatment was provided without the Veteran's informed consent. CONCLUSIONS OF LAW 1. A left leg disability was not incurred in active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for coronary artery disease with coronary artery bypass graft residuals are not met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for a left leg disability as well as entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for coronary artery disease with coronary artery bypass graft residuals. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in March 2008, August 2010, and April 2012, the Board remanded these claims and ordered the agency of original jurisdiction (AOJ) to provide proper notice to the Veteran under the Veterans Claims Assistance Act of 2000 (VCAA); associate outstanding VA and private treatment records as well as Social Security Administration (SSA) records with his claims folder; and provide the Veteran with a VA examination for his claimed left leg disability and associate a copy of the examination report with his claims folder. The Veteran's claims were then to be readjudicated. Pursuant to the Board's remand instructions, the Veteran was provided appropriate VCAA notice. This will be discussed in greater detail below. Additionally, VA treatment records have been obtained and associated with his claims folder. However, as will be discussed below, identified private treatment records and cine angiograms from September 18, 2002 and September 20, 2002 cardiac surgical procedures at the Birmingham, Alabama VA Medical Center as well as SSA records were not able to be obtained. Moreover, as will also be discussed below, the Veteran was scheduled for a VA examination for his claimed left leg disability, but did not appear for the examination. The Veteran's claims were readjudicated via May 2010, July 2011, and February 2013 supplemental statements of the case (SSOCs). Accordingly, the Board's remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the Veteran was provided with the required notice by letters mailed in October 2003, November 2003, February 2004, and February 2011, and notice with respect to the rating and effective-date elements of the claims by the February 2011 letter. Although the February 2011 VCAA letter including the rating and effective-date elements of the claims was provided after the initial adjudication of the claims, the Board finds that the Veteran has not been prejudiced by the timing of this letter. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the VA Appeals Management Center (AMC) readjudicated the Veteran's claims in the July 2011 and February 2013 SSOCs. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims. There is no reasonable possibility that further assistance would aid in substantiating the claims. The pertinent evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. As noted above, the Veteran was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his service connection and § 1151 claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the Veteran's claimed left leg disability as well as his § 1151 claim, and suggested the submission of evidence that would be beneficial to the Veteran's claims, namely evidence pertaining to nexus between the Veteran's claimed left leg disability and military service and evidence concerning his coronary artery bypass graft. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the criteria necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the criteria necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In general, VA's duty to assist includes obtaining records from the Social Security Administration (SSA). See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The record demonstrates that in April and July 2012, the AMC attempted to obtain the Veteran's SSA records. In a subsequent December 2012 report, SSA informed VA that it did not have any of the requested records for the Veteran as the medical records were destroyed. The Veteran was informed of the unavailability of the SSA records in a December 2012 letter from the AMC pursuant to 38 C.F.R. § 3.159(e) (2012). Neither the Veteran nor his representative has since submitted or identified any outstanding evidence pertaining to his SSA records which could be obtained to substantiate the claims. Based upon this record, the Board finds that additional attempts to obtain the Veteran's SSA records would be futile. The Board also observes that the Veteran testified that he was receiving treatment for his heart by two private physicians. See the November 2007 Board hearing transcript, pgs. 12, 19. In February 2011, VA wrote to the Veteran, asking him to give VA permission to obtain medical records from private providers who have treated him for the disabilities for which he was seeking service connection. The Veteran did not respond. In March 2011, VA called the Veteran to express to him that the AMC needed the names and addresses of the doctors who had treated him for the heart and left leg conditions. It documented that it also encouraged the Veteran's wife to assist the Veteran in providing this information. See March 28, 2011, report of "Contact with Claimant." The AMC then wrote a letter to the Veteran on that same day, wherein it described the phone call exchange and told him, "If we work together, we can gather the medical evidence needed to forward your case to a Rating Specialist for a rating decision." See letter on page 1. The record shows that both the February 2011 and March 2011 letters were sent to the Veteran's current address and were not returned as undeliverable. Although the absence of private treatment records is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records as the AMC made a sufficient attempt to obtain these records. Furthermore, the Veteran had an obligation to assist VA in the development of his pulmonary disorder claim. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The Board's decision to not remand the appeal to obtain these potential private treatment records is supported by the fact that the AMC made a sufficient attempt to locate the records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim]. Additionally, the AMC has attempted to obtain identified cine angiograms from the Veteran's September 18, 2002 and September 20, 2002 cardiac surgical procedure at the Birmingham, Alabama VA Medical Center in connection with his § 1151 claim. However, in January 2013, the AMC was notified by the Birmingham VA Medical Center that the September 2002 cine angiograms were unavailable as the available images only go back to 2005. The AMC determined that the records were unavailable and further attempts to obtain them would be futile. The AMC then contacted the Veteran and informed him of the negative response. Although the Veteran submitted copies of imaging scans dated September 20, 2002, these scans were already associated with his claims folder. He has not submitted the September 18, 2002 and September 20, 2002 cine angiograms. Although the absence of the cine angiograms from the Veteran's September 18, 2002 and September 20, 2002 cardiac surgical procedure at the Birmingham, Alabama VA Medical Center is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records as further attempts to obtain the records would be futile. See Gobber, supra. Under 38 C.F.R. § 3.159(c)(4) (2012), VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the duty to assist the Veteran by affording him the opportunity to report for a VA examination with respect to his left leg disability claim, the Board remanded the case in March 2008. The Veteran was subsequently scheduled for a VA examination in April 2010. He thereafter contacted the VA Medical Center where his examination was to occur and canceled the examination, stating that he did not wish to come in for a Compensation and Pension examination. There is no indication that the Veteran had good cause for canceling the examination and he has not contacted VA to reschedule the examination. It is regrettable that the Veteran failed to report for his scheduled VA examination. However, there is no indication that the Veteran attempted to reschedule his appointment. The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood, supra. The Board further notes that, where entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). There is of record no indication that the Veteran showed good cause for his failure to report for the scheduled examination. As noted above, the Veteran must cooperate in this development of the evidentiary record to its fullest extent, and his failure to cooperate may precipitate action adverse to the interests of his claims. It is clear that VA has done its utmost to develop the evidence with respect to the Veteran's left leg disability claim. Any failure to develop this claim rests with the Veteran himself. It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994). Accordingly, pursuant to 38 C.F.R. § 3.655, the Board shall evaluate the Veteran's left leg disability claim based on the evidence of record. A VA medical opinion was obtained in connection with the Veteran's § 1151 claim in February 2013. The examination report reflects that the examiner reviewed the Veteran's claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that the VA medical opinion is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of a representative. He was afforded a videoconference hearing in November 2007. Accordingly, the Board will proceed to a decision. Service connection for a left leg disability Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). For certain chronic disorders, including arthritis, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran is claiming entitlement to service connection for a left leg disability, which he contends is due to his military service. With respect to Hickson element (1), the competent and probative evidence of record does not demonstrate that the Veteran is currently diagnosed with a left leg disability. Specifically, the competent and probative evidence of record is absent a finding of such. The Board also notes that a VA treatment record dated December 2004 documents an assessment of chronic leg pain. Indeed, the Board wishes to make it clear that it has no reason to doubt that the Veteran experiences certain symptoms such as pain in his left leg. However, symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including pain), has presented no clinical evidence of a diagnosis of a left leg disability. The Veteran testified that he had ligament damage which was treated in 1963 or 1964 and treatment for torn cartilage in 1977. He eventually had a total knee replacement and now has problems with pain and popping. He also reported that he had shin splints. The Board finds that the Veteran as a lay person is not competent to associate any of his claimed knee symptoms to a left knee disability. Whether his symptoms are manifestations of a ligament abnormality or residuals of a left total knee arthroplasty are determinations for a medical professional. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a diagnosis of a left leg disability to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a current left leg disability. Even if the Veteran is competent to relate that he has knee symptoms that are a residual of his arthroplasty, there is no competent evidence relating post-operative residuals to an injury or disease in service. The etiology of knee disability requiring a total knee replacement years after service requires medical expertise. Such is beyond the capability of a lay person to observe. To the extent that the Veteran reports he has shin splints, he is competent to report that he has such. However, the preponderance of the evidence of record is against finding that shin splints began in service or are due to an injury or disease in service. While he was treated for a sore leg in service, the separation physical examination indicated that the lower extremities were normal. This is highly probative evidence against finding that current shin splints began in service. To the extent that there are current shin splints, the evidence does not show that they are related to an injury or disease in service. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that the notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Shin splints are not a chronic disease as defined in 38 C.F.R. § 3.309(a) and the Board has already found that shin splints did not begin in service. The Veteran has been accorded ample opportunity to present competent evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood, supra. Once again, the Board notes that the Veteran was scheduled for a VA examination of his claimed left leg disability after which it would have been expected for the examiner to express a competent medical opinion regarding the etiology of the left leg disability, including whether or not the Veteran currently suffers from such and if so, whether the disability is related to his military service. The Veteran failed to report for this examination, and the Board is forced to decide his claim based on the available evidence. The preponderance of this evidence is against his claim for service connection for a left leg disability. 38 C.F.R. § 3.655 (b). The benefit sought on appeal is accordingly denied. Compensation benefits under 38 U.S.C.A. § 1151 Effective October 1, 1997, the United States Congress amended 38 U.S.C.A. § 1151. See § 422(a) of PL 104-204. The purpose of the amendment was, in effect, to overrule the United States Supreme Court decision in Brown v. Gardner, 115 S. Ct. 552 (1994), which held that no showing of negligence was necessary for recovery under § 1151. In pertinent part, § 1151, as amended, reads as follows: Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. See 38 U.S.C.A. § 1151 (2012). From the plain language of the statute, it is clear that to establish entitlement to § 1151 benefits, all three of the following factors must be shown: (1) disability/additional disability, (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. For all claims received after October 1, 1997, 38 C.F.R. § 3.361 is the regulation that implements 38 U.S.C.A. § 1151. To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part involved or system separately. See 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish causation. See 38 C.F.R. § 3.361(c)(1). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, the Veteran must show that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death, and VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1)(ii). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). Id. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. Id. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Id. The Veteran asserts that compensation under the provisions of 38 U.S.C.A. § 1151 for coronary artery disease with coronary artery bypass graft residuals is warranted as his September 2002 VA cardiovascular surgical procedures were improperly conducted. He testified that he was given hypoglycerin during a VA procedure and that he should not have required coronary artery bypass grafting within several months of VA treatment. An October 2002 VA hospital summary and associated clinical documentation conveys that the Veteran was referred to the Birmingham, Alabama, VA Medical Center from Gadsden Regional Medical Center due to an elevated troponin level and for cardiac evaluation. The admitting diagnoses included a non-ST elevation myocardial infarction, hypertension, and hypercholesteremia. On September 18, 2002, the Veteran underwent left heart catheterization which showed severe subtotal LAD disease, severe ramus and D1 disease, mild left circumflex disease, mild to moderate right coronary artery disease, and normal renal arteries. On September 20, 2002, the Veteran underwent a second left heart catheterization and received PCI to the LAD lesion that was brought from 99% down to 0-10% and a D1 lesion from 60% down to 10%. A January 2003 hospital summary from Gadsden Regional Medical Center indicates that the Veteran was admitted for treatment of unstable angina. The Veteran was noted to have undergone a September 2002 stent placement. He underwent a January 2, 2003, cardiac catheterization which revealed "a very proximal 60% lesion in the left anterior descending and then within the stent, there is at least 80% stenosis affecting a major diagonal." The Veteran subsequently underwent a double coronary artery bypass graft operation. A July 2003 written statement from P.S., M.D., reports that: He gave a history of coronary artery disease with angina treated with PCTA and stents in September 2002 at the VA hospital in Birmingham. There was no evidence for acute myocardial infarction during the December 2002 admission. A stress nuclear scan was performed on December 31, 2002. It demonstrated evidence for ischemia in the anterior wall in the distribution of the left anterior descending coronary artery. There was mild reduction in the left ventricular ejection fraction to 48%. ... There was progression of disease with in-stent restenosis in the proximal LAD and the proximal diagonal branch. These stents were placed at the VA hospital in Birmingham in September 2002. An April 2004 written statement from G.R., M.D. conveys that the Veteran "required repeat open-heart surgery because there was stenosis within the stent that had previously been placed." In a September 2004 written statement, the Veteran indicated that: The first thing the Dr. who did my second surgery accomplished was to take an X-ray and put me in for a second surgery. The stent the VA put into my heart was not working. At the November 2007 Board hearing, the Veteran testified that: Right at the very end of having a stent put in, of course, I'm laying in there looking at it on TV or whatever and this doctor says, uh oh and I ask him, what do you mean uh oh? He said, it's nothing, nothing. ... [T]hey were trying to get me stopped up and he asked me was I hurting and I said yes. And evidently the mistake was he was asking me about my heart hurting instead of my groin and I answered yes. ... As I stated before, when I first went to Gadsden Regional, Dr. [Z.] [the Veteran's cardiologist] was waiting on me actually when we got there and he looked at the pictures and he said, I see what's wrong. And he told my girlfriend at the time, he said the stent is not right. ... I asked him about [the stent] because they had a recall of some bad stents that were put in and he thinks that the one I have in me is bad... A VA medical opinion was obtained in February 2013 to address the § 1151 issue. The VA examiner provided a lengthy summary of the Veteran's claims folder and the medical history of the Veteran, specifically noting the Veteran's VA treatment from April 2002 to December 2007 for his coronary artery bypass graft and residuals. He specifically noted the Veteran's two catheterizations in September 2002 discussed above, as well as the subsequent January 2, 2003 cardiac catheterization which required "repeat open heart surgery because there was stenosis within the stent that had previously been placed." Additionally, the examiner noted the Veteran's assertion that he was told by his cardiologist, Dr. Z., that the stent is not right and that one of the stents that was placed may have been recalled. The examiner concluded that there is little evidence that the Veteran is additionally chronically disabled related to his coronary artery bypass grafting treatment. He further opined that there is no evidence of negligence, lack of proper skill, error in judgment, or similar instance of fault or an event not reasonably foreseeable on the part of the VA, nor is there evidence VA failed to exercise the degree of care that would have been expected of a reasonable healthcare provider. The examiner's rationale for his conclusion was based on his review of the Veteran's medical history. Although he noted the absence of the September 2002 cine angiograms in conjunction with the September 18, 2002 and September 20, 2002 cardiac surgical procedures, he noted a September 2007 VA treatment record documenting an assessment of coronary artery disease, status post coronary artery bypass graft, stable, asymptomatic. He did not identify any evidence that undergoing the coronary artery bypass graft has imposed additional disability from a coronary artery disease perspective upon the Veteran. He also discussed a review of medical literature which indicates that bare metal stents reduced the occurrence of restenosis to roughly 30 percent, compared with 40 percent for balloon angioplasty alone. In addition, stents nearly eliminated the likelihood of severe coronary artery dissections, markedly reducing the need for emergency bypass surgery. As such, the VA examiner indicated that restenosis is not unexpected, regardless of the type of stent. The February 2013 VA opinion was based upon thorough review of the record and thoughtful analysis of the Veteran's medical history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including chest pain), has presented no clinical evidence that he had additional disabilities which were not reasonably foreseeable and that were caused by VA's treatment related to his coronary artery bypass graft, or that an additional disability was caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was due to an event not reasonably foreseeable. The Board finds that the Veteran as a lay person is not competent to base such a determination. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to his claimed additional disabilities were caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was due to an event not reasonably foreseeable to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence that he has additional disability which was caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was due to an event not reasonably foreseeable. It is noted that a VA cardiac catheterization lab note dated September 20, 2002, indicates that the Veteran complained of right upper back pain after the sheath was pulled and that he became diaphoretic and hypotensive to the 60's. He was given 500 cc of NACL STAT and his blood pressure quickly returned to the 90's. The record thereafter, including the medical records, does not reflect any additional disability due to any failure on VA's part to exercise the degree of care that would be expected of a reasonable health care provider or due to an event that was not reasonably foreseeable. It is also noted that a Veterans Health Administration opinion was obtained in December 2011. However, as the clinician indicated that his opinion should be taken with some degree of skepticism as he did not have the September 2002 cine angiograms available for review, that opinion has not been accorded any probative weight. To the extent that the Veteran contends that he underwent the September 2002 coronary artery bypass grafts without informed consent, the Board observes that his VA claims folder contains informed consent forms which have been signed by him. Pertinently, "Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). See 38 C.F.R. § 3.361(d)(1)(ii). He signed a form indicating that he was specifically informed that "[s]hould the JOMED stent graft fail, I may need emergency coronary bypass surgery." As such, to the extent that the Veteran asserts that he did not provide informed consent, the Board finds his contentions are not credible in light of the evidence contained in contemporaneous treatment records indicating that the Veteran was informed of the risks involved with the surgery and chose to have the procedures. There is no credible evidence to suggest that the treatment the Veteran received was performed without the Veteran's informed consent. In this case, the competent and probative evidence establishes that the Veteran does not have additional disability as a result of September 2002 VA cardiovascular surgical procedures that is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, nor were the claimed disabilities unforeseeable, given the Veteran's known diagnoses for which VA treatment was rendered. 38 U.S.C.A. § 1151 (West 2002). In sum, the Board finds that the preponderance of the evidence is against the claim. There is no doubt to be resolved. Consequently, the benefit sought on appeal is denied. ORDER Entitlement to service connection for a left leg disorder is denied. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for coronary artery disease with coronary artery bypass graft residuals is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs